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Robinson v. Brandon

United States District Court, D. Utah, Central Division

August 31, 2018

HAROLD V. ROBINSON, Plaintiff,
v.
THOMAS E. BRANDON, in his official capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and JEFF SESSIONS, in his official capacity as Attorney General of the United States Defendants.

          DEE BENSON DISTRICT JUDGE

          REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION TO DISMISS

          EVELYN J. FURSE UNITED STATES MAGISTRATE JUDGE

         Defendants Thomas E. Brandon and Jeff Sessions (collectively, “the Federal Defendants”) move the Court[1] to dismiss pro se Plaintiff Harold V. Robinson's Second Amended Complaint. The Federal Defendants argue Mr. Robinson's Substantive Due Process claims under the Fifth Amendment fail to state a claim because only the Second Amendment guarantees the right to self-defense. (Mot. To Dismiss (“Mot.”), 4-5, ECF No. 41.) The Federal Defendants further contend that this Court should not grant Mr. Robinson leave to amend his claims to plead under the Second Amendment because Mr. Robinson intentionally waived his Second Amendment claims and amendment would prove futile. (Id. at 5-10.) After considering the parties' briefing, oral argument, [2] and the applicable law, the undersigned agrees and RECOMMENDS the District Judge DISMISS Mr. Robinson's Substantive Due Process Claims against the Federal Defendants because only the Second Amendment guarantees the right to bear arms for self-defense. The undersigned further RECOMMENDS the District Judge DISMISS Mr. Robinson's action with prejudice because he voluntarily and intentionally waived his Second Amendment claims.

         FACTUAL AND PROCEDURAL HISTORY

         On February 24, 2016, Mr. Robinson filed his Complaint against the Federal Defendants alleging that 18 U.S.C. § 922(g)(1) (“The Gun Control Act”) violated his Second Amendment right to keep and bear arms. (Compl. ¶ 37, ECF No. 3.) The Federal Defendants filed a Motion to Dismiss Mr. Robinson's Complaint for failure to state a claim upon which this Court can grant relief. (Mot. to Dismiss, ECF No. 7.) After the parties had an opportunity to respond to the Federal Defendants' Motion to Dismiss, Mr. Robinson filed a Motion to Amend his Complaint. (Request for Leave to Amend Compl., ECF No. 12.) On March 24, 2017, the Court granted Mr. Robinson's Motion to Amend. (Mem. Decision & Order Granting Pl.'s Mot. to Amend, ECF No. 16.) On April 10, 2017, Mr. Robinson filed his First Amended Complaint where he again alleged that the Gun Control Act as applied to him violated his Second Amendment rights. (Am. Compl. ¶¶ 76-78, ECF No. 18.) On September 19, 2017, Mr. Robinson moved for leave to file a second Amended Complaint in which he replaced his Second Amendment claims with two claims under the Substantive Due Process Clause of the Fifth Amendment. (Mot. for Leave to File 2d Am. Compl. (“Mot. for Leave”), 4-5, ECF No. 37.) On October 20, 2017, the Court granted Mr. Robinson's Motion. (Docket Text Order Granting Mot. for Leave, ECF No. 39.) On November 15, 2017, Mr. Robinson filed his Second Amended Complaint, which the Federal Defendants now seek to dismiss for failure to state a claim upon which this Court can grant relief.

         The Court takes “as true all well-pled (that is, plausible, non-conclusory, and non-speculative) facts alleged in plaintiffs' complaint.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         In September 2001, at the age of nineteen, Mr. Robinson pled guilty to possession of a shotgun with a barrel less than eighteen inches as defined by 26 U.S.C. § 5845(a)(1) and in violation of 26 U.S.C. § 5861(d). (2d Am. Compl. ¶ 8, ECF No. 40.) The crime carries a potential term of incarceration greater than one year (id. at ¶ 21), however, Mr. Robinson received forty-two months of probation, which he fully satisfied “and the case is closed.” (Id. at ¶ 8.)

         Mr. Robinson alleges he would like to acquire a firearm for purposes of exercising his right to self-defense. (Id. at ¶ 4). In or around February 2014, Mr. Robinson met with a Federal Firearms License (FFL) Dealer to purchase a gun. (Id. at ¶ 20.) Mr. Robinson disclosed that he had a felony conviction, and the dealer informed him that he could not purchase a firearm because of his conviction. (Id.) Mr. Robinson asks the Court to declare the Gun Control Act unconstitutional as applied to him because the Act allegedly “violate[s] [his] fundamental liberty right of personal security and safety secured by the Substantive Due Process Clause of the Fifth Amendment to the U.S. Constitution.” (Id. at ¶ 48.) Mr. Robinson also seeks a permanent injunction against the Federal Defendants, enjoining them “from enforcing 18 U.S.C. 922(g)(1) against [him]; from denying him lawfully possessing and using lawful firearms for lawful self-defense; and … from enforcing their Regulatory Scheme in a manner as to deny or disparage [him] from commercially purchasing lawful firearms … in the same manner as any typical law-abiding responsible American citizen.” (Demand for Relief ¶ 2, ECF No. 40.)

         LEGAL STANDARD

         Mr. Robinson proceeds pro se, in forma pauperis in this action.[3] The Court construes pro se pleadings liberally and holds them to a “less stringent standard.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation omitted)). However, the Court cannot act as an advocate for a pro se litigant, who must comply with the fundamental requirements of the Rules. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (“[T]his court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.”) (quoting Garrett, 425 F.3d at 840). A pro se plaintiff's claims should survive a Rule 12(b)(6) motion, “despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Smith, 561 F.3d at 1096 (quoting Hall, 935 F.2d at 1110).

         DISCUSSION

         I. The Substantive Due Process Claims Fail Because Only the Second Amendment Recognizes a Cognizable Right to Self Defense

         Mr. Robinson alleges the Gun Control Act

violates his fundamental, inherent right of self-defense secured by the Substantive Due Process Clause of the Fifth Amendment to the U.S. Constitution because the denial of lawful firearms and ammunition possession and usage while living in society are so severe that they completely eliminate his right to lawfully repel force by ...

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